Research Paper: Employee Discipline

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Employee Discipline

Discipline of employees often gives rise to employment litigation (Konchan, October 2005, p. 1) and disciplining employees for infractions is something that most employers dread to think about (Williams, 2002, p. 3). This paper seeks to point out the steps an employer can take to prevent or to minimize employee infractions, and also what choices an employer has to discipline an employee. In order to discipline an employee an employer should have well-prepared documentation to back up his decision. But, in order to have good documentation, he will need a well-crafted disciplinary policy to enforce. The answer seems to be that both an employer's disciplinary system and his documentation procedures need to be running smoothly hand in order for his company to protect itself from costly lawsuits (Williams, 2002,

p. 1). In addition to good documentation and disciplinary procedures, employers in the 21st century need to keep some other concepts in mind. Gone are the days when you could write up an employee three times and then summarily fire him. These days, due to the large amount of capital employers have invested in training employees, and the costs to replace an employee, many employers are interested in how to turn bad employees into productive employees. A company's documentation and disciplinary procedures should be the first step in this process. By letting employees know their shortcomings, and giving them a chance to improve, an employer may be saving his company thousands of dollars in the long run (Williams, 2002, pp 1f.). The disciplinary ground rules need to be clearly communicated to the employees so that they are aware of what they can do and what they cannot do. For this reason, a good disciplinary policy is imperative.

Progressive Discipline and its Primary Purpose: Progressive Discipline is defined as a series of disciplinary actions or steps that are progressively more severe leading to improvement of performance or termination from employment (see Konchan, October 2005, p. 2). A progressive disciplinary approach combines the concept of stiffer penalties for more serious violations with that of increasingly more serious penalties for recidivism. With time, employees should be able to clear their record. For instance, an employee who was to be terminated the next time he was involved in horseplay most likely should receive a lesser penalty after several years of a perfect record (Billikopf, 11 August 2006, p. 2). The primary purpose of progressive discipline is to assist your employees to understand that: An opportunity exists for improvement or, a severe performance problem may exist. Companies should consider using the progressive discipline system. The progressive discipline system normally begins with the recruitment process and continues through orientation, training, performance evaluations and daily supervision. A progressive discipline system consists of the following (Konchan, October 2005, p. 2): A verbal warning; a written warning; suspension; and termination.

Misconceptions about Progressive Discipline: There are many misconceptions concerning progressive discipline. Many employees feel they are entitled to disciplinary measures prior to being terminated. In most cases where at-will employment is the rule, progressive discipline is not a RIGHT; but an opportunity, offered by the employer, to correct performance on the job (Konchan, October 2005, p. 2). This not a RIGHT unless promised in an employee handbook, collective bargaining agreement or a public, municipal employer (Konchan ibid).

At-Will Employment is the Law: So called "at will employment" is the law in every U.S. State (excluding Montana). Employment is presumed to be "at-will" unless the employer has taken some type of action to introduce a different policy in the workplace of for a particular employee. An employment relationship for no specific duration may generally be terminated at any time, for any reason or for no reason at all, at the will of either the employer or the employee. The phrase "at-will" is just another way of saying "at the will of either party." In other words, "at-will employment" means, "the job will last as long as both parties wish it to continue and it will end when either party wants it to end" (Konchan, p. 3). Accordingly, under at-will employment, the employee is not guaranteed a job for any specific period of time. The employment contract between the employer and the employee (any agreement regarding the job, pay, benefits, duties, etc.) can end at any time. Simply put, the employer may terminate the employee at any time, and the employee may quit at any time. When employees are "at-will" employees, an employer does not need a reason to justify termination. These employees may be fired for any reason or for no reason (Konchan, p. 2). The situation is quite different in Western Europe and nearly all other countries. In these countries, there exists a general principle of law that dictates that workers cannot be terminated without cause. This principle is enforced either in labor courts, other specialized courts, or in the general court system (Wheeler & Klaas & Mahony, 2004, p. 2). However, also in the U.S. employees cannot be fired for an illegal reason, such as unlawful discrimination based upon race, creed, national origin, age, handicap, gender or marital status (see for the laws in New York and New Jersey, At will employment in New York and New Jersey, p. 1).

Employee Handbooks and At-Will Employment: It's possible that employee handbook terms change at-will status by creating a contract. An at-will employee may gain some protection against firing without good cause based on handbook terms making promises. If employees have been promised that they will not be fired unless certain conditions are met, the employer must comply with these promises or face a claim for wrongful discharge. Similarly, a discharge, may be "wrongful" in a case of employee discipline when an employer violates an employee's procedural rights. For instance, some employers in implementing progressive discipline measures in their company promise employees a formal hearing, a certain number of written warnings or some other process before they are finally terminated. If an employer fails to carry out these preliminary procedures before firing an employee, the firing may be considered a wrongful discharge (see Konchan, October 2005, p. 4). Generally, without a clear and prominent disclaimer, statements in an employee handbook implying terminations are based on good cause are unenforceable, even when employment is otherwise at-will.

A principal area of litigation has been employment handbooks. The New Jersey Supreme Court held in Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, modified, 101 N.J. 10 (1985), that representations made in employee handbooks are enforceable in certain circumstances: [w]hen an employer of a substantial number of employees circulates a manual that, when fairly read, provides that certain benefits are an incident of the employment (including, especially, job security provisions), the judiciary, instead of "grudgingly" conceding the enforceability of those provisions . . . should construe them in accordance with the reasonable expectations of the employees (At will employment in New York and New York City, p. 2). In so holding, the Woolley court did not make an exception to the doctrine of employment at will in situations where there is an employee handbook, but instead recognized "basic contract principles concerning acceptance of unilateral contracts" (At will employment in New York and New York City, p. 2).

The meaning and effect of handbook's provisions and the circumstances under which handbooks were prepared and distributed are crucial factors to consider in determining whether or not their provisions will be enforced. Clear and explicit language is one key factor in enforceability. The court in Woolley found that the language regarding job security was "explicit and clear," and that comprehensive provisions regarding termination and [employee] discipline were set out (At will employment in New York and New York City, p. 3 with further references). The extent to which a personnel manual or handbook is distributed is an especially important factor in determining whether it should be considered binding. General distribution of the handbook, "forms a basis for the legal presumptions that (1) the employer intended to be bound and (2) employees were generally aware of and could have reasonably relied upon the manual's terms" (see At will employment in New York and New Jersey, pp. 2-3 with further references). The Woolley Court found that a presumption of reliability arises and the [personnel] manual's provisions become binding at the moment the manual is distributed. Conversely, if an employee handbook has not been generally distributed, it cannot form the basis of a Woolley claim; because employees cannot show that they actually relied on their provisions (see At will employment in New York and New York City, p. 3 with further references). The court reasoned that interpretation of such clauses needed to be in line with reasonable employee expectations. An employer cannot set out enticing promises without intending to live up to them. An employer's belief on the enforceability of the promise doesn't matter (see Employee Handbooks and At-Will Employment, p. 1). Courts tend to imply reliance so that all employees are treated the same way (Employee Handbooks and At-Will… [END OF PREVIEW]

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